Crown:   H. Apel, Office of the Crown Attorney, Milton
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1   CROWN:  ... there should now be an Information before the Court of distribute obscene material, contrary to section 163(1) of the Criminal Code ... I'll ask that he be arraigned on that. And the Crown is proceeding summarily.

¶ 2   THE COURT:  Okay. Mr. Penney, before we arraign him, could – is he pleading guilty today?

¶ 3   MR PENNEY:  Yes, he is, Your Honour. He's pleading guilty to a count of distribute obscene material. The plea is voluntary, and it is informed. Mr. D. is informed of our JPT discussions, but he well understands that the sentence that will be handed down today is in Your Honour's hands, and that includes any particulars with respect to the probationary conditions, and the length of probation.

¶ 4   THE COURT:  Okay, and he understands he has to admit the essential elements of the offence?

¶ 5   MR PENNEY:  He does, Your Honour.

¶ 6   THE COURT:  And he understands the nature and the consequences of that plea?

¶ 7   MR PENNEY:  He does, Your Honour.

¶ 8   THE COURT:  Okay, and he's doing it voluntarily?

¶ 9   MR PENNEY:  He is, Your Honour.

¶ 10   THE COURT:  Okay, all right. Let's arraign him. ...

¶ 11   CLERK:  N.D., you stand charged at – between the 1st day of March, in the year 2024 and the 30th day of June 2024, at the Town of Oakville, in the said region, did distribute obscene material, contrary to section 163(1) of the Criminal Code. The Crown has elected to proceed summarily. Do you understand the charge as read?

¶ 12   N.D.:  I do.

¶ 13   CLERK:  And how do you plead to the charge as read, guilty or not guilty?

¶ 14   N.D.:  I plead guilty.

¶ 15   CLERK:  Thank you. Please listen to the facts.

¶ 16   CROWN:  Your Honour, on February 18th, 2025, members of Halton Police executed a search warrant at an address in Oakville. Multiple computer devices belonging to the accused were seized and analyzed. The images and movies extracted included a video of an adult female fellating a horse. This video was degrading, and depicted the undue exploitation of sex. Between March 1, 2024, and June 30th, 2024, the accused used, used the Kik messaging app and circulated that video by transmitting it to another person.

¶ 17   MR PENNEY:  Mr. D., are those facts correct as read?

¶ 18   N.D.:  Yes, they are correct as read.

¶ 19   MR PENNEY:  Your Honour, we admit those facts and ask that you find Mr. D. guilty of the charge as read.

¶ 20   THE COURT:  Okay. Finding of guilt.

¶ 21   CROWN:  There will be joint submission for Your Honour's consideration of a conditional discharge and probation for two years. I believe Your Honour does have the terms of probation that are jointly being proposed.

¶ 22   THE COURT:  I do. All right.

¶ 23   CROWN:  And forfeiture – yeah – of the items seized. And Your Honour should have a copy of the forfeiture order ... He has no criminal record.

¶ 24   THE COURT:  Okay. I recall our pre-trial discussion. So with that in mind....

¶ 25   CROWN:  I have nothing further.

¶ 26   THE COURT:  Mr. Penney, do you have anything to add?

¶ 27   MR PENNEY:  I don't have anything to add, Your Honour. His personal circumstances are detailed in the materials before Your Honour, and they form part of the public record. And I have nothing to add unless Your Honour needs to hear from me further.

¶ 28   THE COURT:  No, I don't. Thank you. Mr. D., it's your turn. I haven't heard from you. If there's anything you'd like to say, now is your opportunity. You don't have to say anything unless you want to.

¶ 29   N.D.:  No, that's okay, Your Honour.

¶ 30   THE COURT:  Madam Clerk, here's the forfeiture order back.

¶ 31   CLERK:  Thank you.

¶ 32   THE COURT:  Well, I give you credit for your guilty plea. I give you credit for the upfront work you've done through the counselling that's been provided by Ms. T. I also hope that your health stabilizes, and you fully recover. But what I want you, what I want you to reflect upon though, is the very degrading nature of the facts that support this guilty plea. I can't imagine what would compel anyone to do what is, is offered in the facts in this case; why anyone want – would want to possess that material or distribute it. And I hope you... I hope you dig deeply, and think very hard about what it was that attracted you to this. It's degrading, it's humiliating, it's perverse. So I accept the position that was put forward. It will be a two-year conditional discharge. And I'll go through the terms of the order with you now. You must keep the peace and be of good behaviour, appear before the court when required to do so, notify the court or probation officer in advance of any change of your name or address, and promptly notify the court or the probation officer of any change in your employment or your occupation. You will report to a probation officer today, at telephone number 905***, and thereafter as you are directed. You will cooperate with your probation officer, and you must sign releases that will permit the probation officer to monitor your compliance with the order, and you must provide proof of compliance upon request. Are you still living at M*** Street?

¶ 33   N.D.:  Yes, Your Honour.

¶ 34   THE COURT:  Okay. Madam Clerk, could I see that Information to get the address. All right, [indiscernible]. You'll reside at M*** Road, and not change that address without obtaining the permission of your probation officer in advance. You are to attend and actively participate in all assessment, counselling and rehabilitative programming as directed by the probation officer, and complete them to the satisfaction of the probation officer. We'll leave it unspecified. You'll sign releases of information that will enable the probation officer to monitor your attendance and completion of the assessment, counselling programming, and you'll provide proof of your attendance and completion of assessment, counselling and programming, as may be directed. Madam Clerk, I'd like to add in the following clause: In developing, counselling or other programming for Mr. D., probation should consult with J.T., MSW, RSW. See her report dated November 27, 2025, which was Exhibit 1 in this proceeding. I'm going to mark that report as an exhibit, Counsel, unless there is an objection.

¶ 35   MR PENNEY:  No objection, Your Honour.

¶ 36   THE COURT:  Okay. Madam Clerk, there's Exhibit 1.

¶ 37   CLERK:  One. EXHIBIT NUMBER 1: Report from Ms. T. – produced and marked.

¶ 38   THE COURT:  Counselling or other programming for Mr. D. should focus upon his mental health. Is that sufficient, Mr. Apel?

¶ 39   CROWN:  Yes, Your Honour.

¶ 40   THE COURT:  Okay.

¶ 41   MR PENNEY:  Your Honour, before we leave the counselling provision, could I address you, please?

¶ 42   THE COURT:  Yeah, go ahead.

¶ 43   MR PENNEY:  So, Your Honour, one of the things that probation's doing – been doing in the province is sending all offenders where there is a sexual element to the offence, for the phallometric and sexual preference testing, which is a very invasive test, Your Honour. And can itself, you know, cause PTSD symptoms because of the trauma of the materials exposed to the probationer. So we're asking that the probationary term to please exclude phallometric and sexual preference testing. And that's a joint submission, I understand.

¶ 44   THE COURT:  All right.

¶ 45   CROWN:  It is.

¶ 46   THE COURT:  Okay, I'll add that in.

¶ 47   MR PENNEY:  Thank you so much, Your Honour.

¶ 48   THE COURT:  Mr. D. should be excluded from phallometric or sexual preference testing. All right. Now, Madam Clerk, we're going to go into some further terms of the order, which I think we can include at the very end of the order. And will go as follows. Let me know when you're ready. Actually, if you can do a cut and paste, but you'll have to re-number it; it's items three, four and five of the terms provided by counsel.

¶ 49   CLERK:  Yes, Your Honour.

¶ 50   THE COURT:  To ensure compliance with your terms of probation, if requested by your probation officer, you are to provide as soon as practicable, to your probation officer, a list of your personal computers, mobile devices and storage devices. And if requested by your probation officer, assist as soon as practicable, your probation officer in accessing the data on these devices. You are not to possess, access or attempt to access any obscene material as defined by the Criminal Code of Canada. Your internet access is restricted as follows: you are not to access or join FreeChatNow or similar chat room, chat – group chat, message board, Listserv or any other online group discussion where sexual topics are the primary topics of discussion. You are not to access, upload, download or search online for any images, movies or writings of any persons depicted with animals in a sexualized manner. You are not to use or download Mega, Ares, Shareaza, GigaTribe or similar peer to peer file, file sharing program. And you're not to download any encryption program, except as may be required for your employment, or except as may be required for an educational program you are enrolled in. You are not to use or download Freenet, or any similar censorship resistant program. You are not to download or use the Kik or Signal app or program, and not access the Internet Relay Chat. You are not to engage in any sexualized chat with any person, unless you have previously met that person face-to-face (meaning not online). You are not to use a VPN service or any other service or software which obscures your IP address, except as may be required for your employment, or except as may be required for an educational program you are enrolled in. And finally, you are not to use the private browsing feature to access the internet (example in-Cognito browsing on Google Chrome). Not to erase your browsing history, not change the default settings, re your browsing history (example Google Chrome or Internet Explorer). Those are the terms. Have I captured everything?

¶ 51   CROWN:  Yes, Your Honour.

¶ 52   THE COURT:  Okay.

¶ 53   MR PENNEY:  Your Honour, I need to address you on a point that's my oversight, please.

¶ 54   THE COURT:  Go ahead.

¶ 55   MR PENNEY:  Condition 5(a), Your Honour, is going to prevent him from participating in the counselling with Ms. T. and Ms. E. So if we could put an exception, please, to 5(a), so it says, except for counselling or therapy with a health professional.

¶ 56   CROWN:   That's on consent.

¶ 57   THE COURT:  So it will be, or any online group discussion, and then it would read except for counselling or therapy with a health professional.

¶ 58   THE COURT:  All right. And then we'll delete the remainder?

¶ 59   CROWN:  As for the other Criminal Code charges be marked withdrawn.

¶ 60   THE COURT:  Okay. Other charges are withdrawn by the Crown.

¶ 61   MR PENNEY:  Thank you, Your Honour. That completes my matter. So if I may be excused.

¶ 62   THE COURT:  Okay, have a good day, everybody.